Crown: K. Wright, Assistant Crown Attorney, Barrie
Defence: Craig Penney, Toronto Criminal Defence Lawyer, Barrie
¶ 1 CLERK: C.C., a young person within the meaning of the Young Offender's Act, you are charged between the 2nd day of August, 1984, and the 2nd day of August, 1986, at the City of Barrie, in the Central East Region, did commit a sexual assault on [the first complainant], contrary to section 246.1 of the Criminal Code of Canada. Further, you are charged on or between the 2nd day of August, 1998 and the 1st of August, 1990, at the City of — sorry, the 2nd of August, 1988 and the 1st of August, 1990, at the City of Barrie, in the Central East Region, did commit a sexual assault on [the second complainant], contrary to section 271 of the Criminal Code of Canada.
¶ 2 CROWN: election?
¶ 3  CROWN: By indictment.
¶ 4 CLERK: Mr. C.C., how do you plead to the first count as read to you, guilty or not guilty?
¶ 5 CLIENT: Guilty.
¶ 6 CLERK: How do you plead to the second count as read to you, guilty or not guilty?
¶ 7 CLIENT: Guilty.
[Submissions are made at this time.]
¶ 8 CROWN: With respect to the facts, [the second complainant] approached police and reported allegations of historical sexual abuse and provided a videotaped statement, which disclosed essentially the following. When seven years old, the accused began to babysit for him and his younger brother and to his recollection, almost from the beginning, he began to be molested. It started out with the accused having him look at magazines of naked men and asking questions about genitalia and such, and progressed to videos of men stripping and performing sexual acts. After that the accused began to fondle his penis and genitalia and make him do the same to the accused. There were some acts of oral sex that were performed on him. If the accused thought that [the second complainant] was not complying or was out of line, he would make him get naked and spank him. This went on for about two years, fairly regularly each time he was babysat.
¶ 9 He wasn't able to disclose this to anyone at the time, but eventually much later he disclosed it to his father, indicating that he wanted it to end. He was sick and tired of dealing with it by himself. The accused was the accused before the court, C.C. Many times he was moved by the accused into a particular position using his hands, putting him in a particular spot. There was one occasion of attempted anal entry. The accused indicated that he shouldn't tell anyone, that it was their little secret. Eventually it stopped because his parents got a new babysitter and he is not sure why. His strongest memory of the babysitting is all the things that were done to him. He remembers times of ejaculation.
¶ 10 Over the course of the last year or so he's been trying to deal with the situation and determine a way to disclose it to his parents. It caused him to lose sleep and it has been sort of detrimental baggage that he has carried with him for a considerable amount of time. It has contributed to his attitude problems, poor school grades. It was in the back of his mind every night when he went to sleep.
¶ 11 As a result of that investigation which was started, the police began to canvass the area where the accused lived. He was the sort of local teenage babysitter, if I could put it that way, and police began to investigate with regard to other people that he may have babysat over the course of his teenage years. As a result of that, police contacted Mrs. R., who is the mother of [the first complainant]. She advised that it was her belief that something had happened to [the first complainant], but he had never actually disclosed to her.
¶ 12 As a result, police attended and spoke to him and he did make a disclosure to them, indicating that at the time, from the ages when he was seven to nine, which was in the years earlier than [the second complainant], C.C. was his next door neighbour. He was his babysitter. C.C. began masturbating and ejaculated all over himself. He wanted [the first complainant] to masturbate himself. He would bring him pornographic magazines and if he wouldn't do as he was told, would pull down his pants and spank his bottom. He asked for oral sex, but the complainant wouldn't provide that. He did however perform oral sex on the complainant and did engage in fondling. It happened over a considerable period of time. The accused at the time would have been around 13 or 14 years. He didn't tell anyone. He was afraid to. He thought that he would be blamed for it. He did, however, tell his parents on one occasion that C.C. would spank him and as a result his parents stopped using him as a babysitter. That was when he was about nine. This occurred over the course of about two years. After [the first complainant]'s family had moved away, C.C. came out once to visit with the family and he said that he had found somebody new that would do things that [the first complainant] wouldn't do.
¶ 13 It has affected him significantly and he has low self-confidence. He has problems with having a serious relationship with a girl. He certainly doesn't like to undress in front of men. He has some difficulty with people thinking that he is gay and him having to prove that he is not. That is certainly on his mind a lot. Those are the facts with regard to the charges.
¶ 14 MR PENNEY: Yes, Your Honour, those facts have been extensively reviewed by myself and Mr. C.C. as well as with his psychiatrist Dr. Chisvin, and I have reviewed just a couple of qualifications. They are essentially correct, substantially correct, but I just want to clarify that with respect to each complainant, I believe there were six to eight incidents and there was no admission of oral sex upon [the first complainant] There wasn't any attempt to have anal sex but there was an attempt upon [the second complainant] by Mr. C.C. to insert his fingers into his anus, so that is admitted. But otherwise, the facts are all admitted as substantially correct.
¶ 15 CROWN: That is acceptable, Your Honour.
¶ 16 MR PENNEY: Thank you.
¶ 17 THE COURT: Thank you. Based on those allegations and acknowledgements, there will be findings of guilt on each count. Any record being alleged?
¶ 18 CROWN: No, sir. There is no record that is being alleged.
[Further submissions were made.]
¶ 19 THE COURT: The defendant babysat younger children from about the age of 13 and on. Two victims of sexual assault have come forward regarding this abuse, of which each took place for a couple of years during the 1980s. The victims were ages seven to nine at the time. The defendant admits to about eight occurrences with each. The sexual assaults have had considerable consequences for the victims who were traumatized and suffer continuing recollections and relationship effects.
¶ 20 The defendant has apologized for his actions half a lifetime ago and expressed his hope that his guilty plea and remorse will help bring them closure.
¶ 21 Both Crown and defence have provided me with the very few cases available on the sentencing range for historic young offenders. I am troubled by the fact that these were continuing offences. I am also keenly aware of the provisions of the Young Offender's Act dealing with sentencing policy and the emphasis on rehabilitation over specific and general deterrence. Section 24 gives further direction regarding custody and the consideration in that regard.
¶ 22 I also have the advantage of a psychiatric report which indicates a low risk of reoccurrence and no paedophile tendencies which would raise current safety concerns for children.
¶ 23 The defendant has struggled with society's views on homosexuality and tragically has contracted A.I.D.S. from one of his few relationships. He has good community support and reputation and volunteers extensively for charitable purposes and is a valued and talented employee. A jail term would terminate his ability to continue to contribute to society for a considerable period of time.
¶ 24 These charges do involve a breach of trust with innocent children being abused. The emphasis of such cases shifts to general deterrence and denunciation, which calls for a jail sentence. In adult court, a finding of a penalty of jail invokes consideration of a conditional sentence. Both the Crown and defence have addressed terms, should I consider a probation order, akin to a conditional sentence.
¶ 25 Balancing the effect on the victims, society and the offender, I have concluded that a restriction of liberty in a probation order best meets these competing interests. My disposition is as follows: There will be a probation order for a period of 24 months. The terms are that you keep the peace and be of good behaviour; report to a probation officer forthwith and thereafter as required; keep the probation officer advised as to your address and telephone number; seek and maintain employment; continue counselling and treatment with Dr. Martin Chisvin or as directed by your probation officer.
¶ 26 For the first nine months of probation you will remain in your place of residence except for the following purposes: (1) for the purpose of employment; (2) for attendance at volunteer work; (3) medical clinic, emergency hospital, or scheduled counselling attendances; (4) each Saturday from twelve o'clock noon until five o'clock p.m. for shopping and personal needs or visiting with your grandfather, J.R.; (5) attendance at pre-arranged appointments with your lawyer, dentist, doctor or probation officer; (6) religious observances; and (7) with the permission of the probation officer, including community service attendances.
¶ 27 For the first nine months, you are to remain in the Province of Ontario, except for pre-advised trips for the purposes of employment or with specific permission of your probation officer in advance, where an itinerary has been provided.
¶ 28 In order to provide some benefit to the community, I am ordering that there be a Community Service Order in the amount of 160 hours. That is to be completed at the rate of not less than ten hours per month. I am also issuing an order that there be a D.N.A. sample taken. The purpose of this is prevention, detection of any criminal activity and deterrence.
¶ 29 Regarding the request for a weapons order, although this is an offence of violence, no weapon was used and a weapons prohibition is not mandatory under section 109. I will not issue that order.
¶ 30 I am going to return the materials submitted by counsel to be left with the file. Mr. C.C., I caution every young person who appears before this court as to the effect of the probation order; that is, it is a court order and it is meant to be kept. If it is breached, it is a further offence and brings you back to court again. Typically, if rules are not followed in the community, they must be followed in a place where there is less freedom. If you find that you are unable to meet the terms of this probation order because of your personal circumstances, you may come back to court and ask me to amend those, and I will do so if it makes sense.